LINER SHIPPING: IS THERE A WAY FOR MORE COMPETITION? No. 224 March 2016

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1 LINER SHIPPING: IS THERE A WAY FOR MORE COMPETITION? No. 224 March 2016

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3 LINER SHIPPING: IS THERE A WAY FOR MORE COMPETITION? Anila Premti No. 224 March 2016 Acknowledgements: The author would like to thank José Maria Rubiato, Jan Hoffmann, Pierre Latrille, Martin Roy, Prof. Rosa Greaves, Felix Heitmann, Jörg Mayer and two anonymous referees for their helpful comments and insights on earlier drafts of this paper. UNCTAD/OSG/DP/2016/1

4 ii The opinions expressed in this paper are those of the author and are not to be taken as the official views of the UNCTAD secretariat or its member States. The designations and terminology employed are also those of the author. UNCTAD Discussion Papers are read anonymously by at least one referee, whose comments are taken into account before publication. Comments on this paper are invited and may be addressed to the author, c/o the Publications Assistant, Macroeconomic and Development Policies Branch, Division on Globalization and Development Strategies, United Nations Conference on Trade and Development, Palais des Nations, CH-1211 Geneva 10, Switzerland; UNCTAD Discussion Papers are available on the UNCTAD website at JEL classification: K21, L40, L91

5 iii Contents Page Abstract... 1 I. INTRODUCTION... 1 II. LINER SHIPPING COOPERATIVE ARRANGEMENTS... 2 A. Conferences... 3 B. Consortia and other non-ratemaking agreements... 4 C. Capacity stabilization and discussion/talking agreements... 5 III. INTERNATIONAL ORGANIZATIONS WITH ACTIVITIES AND INSTRUMENTS ON LINER SHIPPING COMPETITION... 5 A. The United Nations Conference on Trade and Development... 5 B. The Organisation for Economic Cooperation and Development... 7 C. The World Trade Organization... 8 IV. REGIONAL AND NATIONAL COMPETITION LAWS APPLICABLE TO LINER SHIPPING A. The European Union B. The United States of America C. Selected countries V. GLOBAL ALLIANCES AND THEIR ASSESSMENT VI. POTENTIAL UNCERTAINTIES AND OTHER CONSIDERATIONS VII. CONCLUDING REMARKS REFERENCES List of figures 1 Capacity shares of four mega alliances in Asia North Europe trade Capacity shares of four mega alliances in Asia Med trade... 25

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7 LINER SHIPPING: IS THERE A WAY FOR MORE COMPETITION? Anila Premti United Nations Conference on Trade and Development (UNCTAD) Abstract With around 80 per cent of global trade by volume and over 70 per cent of global trade by value carried by sea, and with these shares being even higher in the case of most developing countries, maritime transport, including liner shipping, remains highly important for international trade and the global economy. To ensure stability in the sector, in various jurisdictions around the world, liner shipping conferences arrangements among ocean carriers allowing for freight rate fixing have been exempted from the application of competition laws over the years. Many of these jurisdictions confer exemptions, under similar conditions also to consortia and strategic alliances arrangements among ocean carriers that do not involve freight rate fixing. The paper aims to provide an overview of recent and potential developments related to competition and cooperation in liner shipping. A number of reviews and studies conducted over the last decades by organizations and individual countries have suggested that liner shipping may not be unique, as its cost structure does not differ substantially from that of other industries, or at least not sufficiently to justify that it needs to be protected from competition, by being exempted from competition laws. As a result, such exceptions have gradually come under review and have narrowed in scope, giving more space to pro-competition, non-ratemaking agreements. Therefore countries are encouraged to establish appropriate and harmonized regulatory systems to support and monitor such agreements. Carriers may continue to collaborate to achieve operational improvements, while the competition authorities ensure that the competition in the market is sufficient and shippers benefit from eventual cost savings. At the same time, enhancing cooperation between national competition agencies, sharing of information among them, and other relevant measures shall be encouraged. I. INTRODUCTION Competition law is also known as antitrust law (e.g. the United States), or anti-monopoly law (e.g. China and the Russian Federation). In the past it was also known as restrictive trade practices law in the United Kingdom and in Australia. Although the content and practice of competition laws, including those applicable to liner shipping, vary in different countries, their purpose is to control or eliminate restrictive agreements or arrangements among enterprises, or mergers and acquisitions or abuse of dominant positions of market power, which limit access to markets or otherwise unduly restrain competition, adversely affecting domestic or international trade or economic development (UNCTAD, 2010: 2). 1 1 Such restrictive agreements include particularly cartels. According to the OECD Glossary of Statistical Terms available at: a cartel is a formal agreement among firms in an oligopolistic industry. Cartel members may agree on such matters as prices, total industry output, market shares, allocation of customers, allocation of territories, bid-rigging, establishment of common sales agencies, and the division of profits or combination of these. In this broad sense this definition is synonymous with explicit forms of collusion.

8 2 Throughout its history, liner shipping, the business of offering regular time scheduled ocean shipping services in international trade, 2 has enjoyed exemptions from the effect of certain competition rules and, as a result, conferences 3 among oceans carriers, allowing for freight rate fixing, have been permitted. The main reason for this practice has been the belief that it was justified by the specific economic problems faced by liner shipping as compared to other industries. These include unusually high fixed costs, very large initial capital investment, other large non-cargo costs, overcapacity, etc. As a result, it was argued that without collective freight rate fixing, open and unrestrained competition would lead to destructive competition, instability of prices and undesirable oligopoly. 4 Following discussion in many countries and regional organizations as to whether exemptions from competition rules, historically enjoyed by liner conferences, are still justified, there has been a tendency during the last decade towards review and narrowing of the scope of such exemptions. In addition, there appears to have been a shift of emphasis among shipping lines away from the traditional liner conferences, and towards the establishment of alliances and other forms of efficiency-enhancing operational types of agreements. 5 In these circumstances, carriers continue to collaborate to achieve operational improvements, while the competition authorities ensure that there remains sufficient competition in the market so that eventual cost savings are passed on to the shippers. This paper will briefly examine the rationale behind the exemptions from the effects of competition laws that have been historically granted to liner shipping cooperative arrangements, the legitimacy and continued justification for such exemptions, as well as applicable instruments, negotiations, and relevant legislative developments. It will continue with a brief description of the recent global alliances among major shipping lines, related considerations, potential legal uncertainties and the way forward. 6 II. LINER SHIPPING COOPERATIVE ARRANGEMENTS Liner shipping has for a long time been governed by cooperative arrangements, originally in the form of conferences, and later, with the emergence of containerization, also in the form of consortia, vessel sharing agreements, strategic/global alliances, capacity stabilization agreements and discussion/talking agreements. 7 2 Irrespective of the amount of cargo they have on board. Ships involved in this trade include general cargo carriers, specialized cargo carriers (e.g. refrigerated goods carriers or car carriers), and/or partially or fully dedicated container carriers. Liner shipping is distinct from bulk shipping services, which carry non-containerized raw materials in bulk form such as crude and refined oil, grain, coal, cement or liquefied gas and are provided only on demand by shippers on non-scheduled routes. There are approximately 400 liner services, most sailing weekly, in operation today. For further information, see the website of the World Shipping Council, 3 The term conference is broad, as it covers a wide variety of arrangements, both formal (written) and less formal agreements regarding rates, frequency of service, loyalty and other arrangements. 4 For a summary of theories and the underlying reasons for liner shipping conferences and antitrust exemptions, see OECD, 2015: See also Sagers, 2006: 802, and Sjostrom, Important container lines have been establishing new alliances or expanding existing ones into new routes. For further information, see section V below. 6 The paper will however not deal with issues of competition in ports and port services. 7 The paper will however deal neither with agreements relating to tramp pools - a number of vessels under different ownership but of a similar type and operated under a single administration nor with cabotage - traffic from port to port within a single State. For more information on the various organizational forms, see OECD, 2002a: 24 27; see also OECD, 2002b:

9 3 A. Conferences Liner conferences, also called shipping conferences or ocean shipping conferences, have had the most significant influence on competition in the liner shipping market compared to other organizational forms of operation. Liner conferences are formal or informal private arrangements between carriers or between shipping lines which enable them to utilize common freight rates and to engage in other cooperative activities on a particular route or routes (OECD, 2002b: 16). 8 The United Nations Convention on a Code of Conduct for Liner Conferences, 1974, 9 defines liner conferences as: A group of two or more vessel-operating carriers which provides international liner services for the carriage of cargo on a particular route or routes within specified geographical limits and which has an agreement or arrangement, whatever its nature, within the framework of which they operate under uniform or common freight rates and any other agreed conditions with respect to the provision of liner services (UNCTAD, 1974: 4). Liner conferences have lasted for years, although individual conference membership may change according to carriers business strategies. 10 The first liner conference was established in 1875 covering routes between the United Kingdom and India, with the aim to control competition among its members and to reduce competition from outsiders. This model quickly spread around most of the main world trade routes. According to the Organisation for Economic Cooperation and Development (OECD), as of 2002, there were around 150 shipping conferences operating in the international freight trade market, with a membership ranging from two to as many as forty separate lines. Although their relevance was declining since the 1970s, conferences still accounted for 60 per cent of TEU 11 capacity in the major trades (see OECD, 2002a: 20). In the last decade, the role of conferences has further declined. Only 18 per cent of existing conference agreements involve the main routes, while almost half of them involve the North-South routes. The top three carriers are included in many agreements but mostly on the North-South and Intraregional services, as the main routes are largely served through other cooperation agreements, mainly strategic alliances. Some conference agreements are still in force in the East Mediterranean and for some parts of the main Far East-Europe routes (e.g., those connecting Middle East countries with India or the Far East). Other conference agreements concern Australian or African connections and tend to serve those markets, mainly from Asiatic ports. The number of carriers involved in these agreements ranges from only two carriers to more than 10 in a few cases, with a maximum of almost 30 carriers. The majority of the carriers that are part of conferences are small-medium sized companies. Yet, almost all the top 30 players (in terms of vessels deployed capacity) are included in at least one conference agreement. Half of these liners are involved in just one conference while no more than 10 per cent are involved in more than ten (see OECD, 2015). 12 In terms of membership, liner conferences can be classified as being either open or closed. For instance, the United States approach has been that of open membership, with equal possibilities for all lines to become a member of a conference, while the rest of the world s approach, in general, has been in favour 8 Also see the OECD Glossary of Statistical Terms. Available at: 9 Adopted on 6 April 1974, and entered into force on 6 October The same definition of liner conference was also included in European Council Regulation 4056/86 of 22 December See OECD, 2002a: 62, citing Shashikumar, TEU or teu the twenty-foot equivalent unit is a unit of cargo capacity used to describe the capacity of container ships and container terminals. 12 For the most recent key developments affecting international seaborne trade, shipping, the world fleet, ports and freight markets, also see UNCTAD, For further information on current policies and trends in the liner shipping industry, also see Meersman et al., 2015; Alexandrou et al., 2014; and Parola et al., 2014.

10 4 of closed conferences, where in order to be admitted, new members have to apply and meet certain specific conditions. B. Consortia and other non-ratemaking agreements Consortia started to be established by liner conference members in the 1960s, following containerization, as a supplementary mean which along with global/strategic alliances and other cooperative arrangements, gradually started to replace conferences, particularly in the United States and European trades where legislative changes narrowed the scope of the antitrust immunity enjoyed by conferences. According to OECD, consortia are agreements/arrangements between liner shipping companies aimed primarily at supplying jointly organized services by means of various technical, operational or commercial arrangements (e.g. joint use of vessels, port installations, marketing organizations, etc.) (OECD, 2002b: 18). 13 A consortium has also been defined as An agreement or a set of interrelated agreements between two or more vessel operating carriers which provide international liner shipping services exclusively for the carriage of cargo relating to one or more trades, the object of which is to bring about cooperation in the joint operation of a maritime transport service, and which improves the service that would be offered individually by each of its members in the absence of the consortium, in order to rationalize their operations by means of technical, operational and/or commercial arrangements. 14 Thus, unlike conferences, consortia do not set common freight rates. They have a more pro-competitive nature, aiming to improve the efficiency of the operations of their members through technical, operational and commercial arrangements. Thus they enable their members to mitigate risks stemming from fluctuations in demand for shipping services, and aim to provide lower-cost services, enhanced frequencies and a wide variety of destinations. Moreover, in terms of membership, consortia can take a variety of forms. They can be composed entirely of independent lines, by members of the same conference, or by both conference and non-conference members. In some instances, conferences have members that participate in several consortia. Vessel sharing agreements for instance, are a consortium subcategory, and have become a frequent form of cooperation between liner shipping companies. Their aim is to maintain a commercial presence on a specified loop or maritime route, whilst withdrawing a ship and redeploying it by reserving space on the vessel of a partner company, the partner in turn proceeding in the same way on another loop (see WTO, 2010: 26). Strategic/global alliances are another form of cooperation between liner shipping companies, which became operational in the 1990s. They normally consist of a small group of carriers which have as their purpose to establish, on a global basis, cooperative agreements involving substantial asset sharing and operational cooperation, while maintaining individual marketing and commercial identities. Often, vessel sharing agreements apply with the same carriers over certain major routes which can be described as global. Normally a strategic/global alliance covers at least two of the major East/West trade routes Europe/ Asia, Asia/United States, or United States/Europe. Although in terms of functioning and commercial implications, strategic/global alliances are a relatively new form of operation, in many jurisdictions they are treated as just another type of consortium or carrier agreement, and enjoy general exemptions from the effect of competition laws (see OECD, 2002b: 19). 13 Common forms of such agreements/arrangements include slot charters, slot exchange, and vessel sharing. 14 See European Commission Regulation 906/2009. Official Journal of the European Union L 256: 31, 29 September, Article 2(1).

11 5 C. Capacity stabilization and discussion/talking agreements Capacity stabilization and discussion/talking agreements are more flexible forms of cooperation, mainly used when there is a large number of non-conference operators participating in a certain trade, or where conferences are open, and therefore efforts by conferences to regulate capacity are ineffective. The status of these agreements varies greatly from one jurisdiction to another. In general, capacity stabilization agreements emerged in the 1980s and included both conference and non-conference lines operating in the same trades, while discussion/talking agreements are looser and non-binding (see OECD, 2002b: 20). According to the United States Federal Maritime Commission (FMC) discussion agreements became prevalent in the late 1980s and early 1990s as a forum within which conference lines could meaningfully participate with non-conference rivals to discuss and voluntarily act together with respect to rates, capacity, and various charges and fees. Their existence was evidence that traditional conferences lacked the flexibility to attract participation by the new independent lines, but that a broader and sufficiently flexible collective arrangement, was possible (see Federal Maritime Commission, 2000: 13). So, the main features of discussion agreements are quite similar to those of conferences. They are exempt from the application of competition laws in the United States, as well as in some Asian countries. However, they were never exempt in the EU (see OECD, 2015: 25). III. INTERNATIONAL ORGANIZATIONS WITH ACTIVITIES AND INSTRUMENTS ON LINER SHIPPING COMPETITION The international community s efforts so far, unfortunately have not resulted in a standard legislative approach to liner conferences and other cooperative agreements in liner shipping, or in a globally endorsed, multilateral legally binding agreement. However, a number of instruments developed over the years by international organizations, including the United Nations Conference on Trade and Development (UNCTAD), OECD and the World Trade Organization (WTO), are worth noting, as they relate to competition in liner shipping and in maritime transport in general. A. The United Nations Conference on Trade and Development The United Nations Convention on a Code of Conduct for Liner Conferences was adopted by UNCTAD in 1974, aimed at taking into account the special needs and challenges faced by developing countries concerning liner conferences. It requested ratification/accession by not less than 24 States, the combined tonnage of which amounts to at least 25 per cent, for its entry into force. This condition was fulfilled in 1983, triggering its entry into force. 15 The Convention sets out an international regulatory framework for shipping conferences, providing, inter alia, rules on access to cargo shares by ship owners established in the territories of the States Parties to the Convention and serving their mutual foreign trade. It grants certain rights to those conferences, but at the same time imposes certain obligations upon them, aimed at protecting the shippers interests and those of the national shipping lines of third countries. According to its Article 2: 15 As of 31 December 2015, the Convention had 76 Contracting Parties. For its text and for more information on the status of international conventions in the field of maritime transport, prepared or adopted under the auspices of UNCTAD, see the website of the Trade Logistics Branch, Policy and Legislation Section, Maritime-Conventions.aspx. For official status information, see

12 6 4. When determining a share of trade within a pool of individual member lines and/or groups of national shipping lines (a) The group of national shipping lines of each of two countries the foreign trade between which is carried by the conference shall have equal rights to participate in the freight and volume of traffic generated by their mutual foreign trade and carried by the conference; (b) Third-country shipping lines, if any, shall have the right to acquire a significant part, such as 20 per cent, in the freight and volume of traffic generated by that trade. 5. If, for any of the countries whose trade is carried by a conference, there are no national shipping lines participating in the carriage of that trade, the share of the trade to which national shipping lines of that country would be entitled shall be distributed among the individual member lines participating in the trade in proportion to their respective share. One of the important elements introduced by the Convention was the cargo sharing formula applicable to conferences, also known as the rule. It suggests that cargo should be divided 40 per cent each to national vessels of the originating and destination country, and 20 per cent to other vessels. The purpose of this formula was to ensure that vessels of developing countries had an opportunity to participate in the carriage of their trade. In addition, the non-legally binding Guidelines towards the application of the Convention on a Code of Conduct for Liner Conferences were issued by UNCTAD in Among other matters, the Guidelines encouraged States Parties to include the definition of liner conference in their national legislations, as well as to add a provision for the appropriate authority to publish the name of the conferences which fell within its scope. In 1979, the European Council adopted Regulation 954/79 concerning the ratification by Member States of, or their accession to, the United Nations Convention on a Code of Conduct for Liner Conferences (also known as the Brussels package ). 16 According to the Regulation, EU Member States were to ratify or accede to the Convention subject to certain arrangements provided by the Regulation which addressed the redistribution of shares given by the Convention to individual Member States. The instrument of ratification or accession should be accompanied by the reservations set out in its Annex I. 17 These arrangements rendered the cargo sharing provisions of Article 2 of the Convention inapplicable in conference trades between EU Member States and, on a reciprocal basis, between EU Member States and other OECD 18 countries. It also made subject to redistribution, among the conference lines of the Member States and of other OECD countries offering reciprocity, the shares of the national lines of the Member States concerned. Although this Regulation helped fulfil the requirements for the entry into force of the Convention, 19 as a result of it, as well as of technological changes that followed which increased containerization, the Convention has in fact had only limited practical application, mainly due to a lack of global endorsement. 16 Official Journal of the European Communities, 1979, L 121: 1, 17 May. For more information, see section on the European Union below. 17 Sixteen EU member States have ratified or acceded to the Convention over the years. 18 OECD membership consists of 34 countries from North and South America, Europe and the Asia-Pacific region. They include many of the world s most advanced countries but also emerging countries like Chile, Mexico and Turkey. OECD also works closely with Brazil, China and India and developing economies in Africa, Asia, Latin America and the Caribbean. 19 And also prepared the situation for the later adoption of European Council regulation 4056/86, Official Journal of the European Communities, L 378: December, granting antitrust exemptions to liner shipping conferences.

13 7 B. The Organisation for Economic Cooperation and Development Over the years, OECD has also adopted a number of instruments relevant to liner shipping conferences. In 1961, OECD adopted the Code of Liberalization of Current Invisible Operations (CLIO), 20 under which OECD Members have accepted legally binding obligations 21 that include refraining from taking action that would be contrary to the principle of free circulation of shipping in international trade and free and fair competition. A number of non-legally binding instruments adopted at OECD over the years will also be outlined below. These include a Recommendation of the Council concerning Common Principles of Shipping Policy for Member countries, 22 supplementing CLIO, which was originally adopted in 1987 and updated in The recommendation calls upon OECD member countries, to endeavour in pursuance of and/or in addition to their obligations under the Code, when contemplating the introduction of new laws and regulations relating to shipping policy, or the amendment of existing ones, to ensure that they are in conformity with the general principles and the guidelines contained in Annexes I and II of this Recommendation. 23 The Principles advise OECD member countries to safeguard and promote open and fair competition, prevent the abuse of dominant position by any commercial party, and limit involvement to minimal intervention. However, Guidelines in Annex II, 24 recognize that liner shipping conferences may be advantageous when basic guidelines and rules for them have been established and followed, and encouraged member States to take a common approach to the application of competition policy to the liner shipping sector. In addition, in 1998, the Maritime Transport Committee of the OECD published its Conclusions on Promotion of Compatibility of Competition Policy Applied to International Liner Shipping (OECD, 1998), which stated that there is a need to promote compatibility of competition rules applied to liner shipping and that member countries should seek practical solutions in cases of incompatibility. When applying competition policy to the liner sector, key objectives such as free and fair competition, maintenance of open trades, market access, economic efficiency, and transparency of laws, regulations and rule-making processes, are to be pursued. An initial report, entitled Regulatory Issues in International Maritime Transport (OECD, 2002b), which discussed regulations governing international liner and bulk shipping, was issued by the OECD Secretariat in Work also continued on the competition aspects of these regulations, mainly on three matters: the positive and negative impact to both carriers and shippers, of common pricing under anti-trust exemptions; the impact of conference, discussion and stabilization agreements; and the possible effects stemming from the removal of anti-trust exemptions for liner shipping (OECD, 2001). In 2002, the OECD Secretariat issued a report entitled Competition Policy in Liner Shipping (OECD, 2002a), where it recommended that countries should review their laws and reduce the protection granted to liner conferences. According to this report, the liner shipping industry had failed to demonstrate that price fixing was indispensable to the provision of regular, efficient and sustainable liner shipping services, or customers had not shared in the benefits of price fixing and there were other mechanisms available to shipping lines, including individual confidential contracts, to enable them to seek greater efficiency, effective services and sustainable business. 20 The latest version of the Code, published in 2013, is available at: InvisibleOperations_WebEnglish.pdf. 21 Subject to reservations. 22 C(87)11/FINAL, 13 February C(2000)124/FINAL, amended on 28 September Available at: oecd.org/oecdacts/instruments/showinstrumentview.aspx?instrumentid=162&instrumentpid=158&lang=en&bo ok=. 23 See the introductory part of the Recommendation. 24 Guidelines concerning competition policy as applied to liner shipping.

14 8 C. The World Trade Organization Although competition and trade, including trade in maritime transport services, are closely linked, no international regime for competition policy or a legally binding instrument on competition have been adopted at the WTO so far. 25 Maritime transport involves different kinds of services, from shipping to port facilities, each of which is organized in complex ways. Liner shipping for instance, has been dominated by rate fixing conferences or other arrangements, while bulk shipping has remained relatively competitive. Some maritime transport services are operated by private enterprises and others by the State. In addition, there are also lobbying and labour union practices that have to be considered. Therefore finding common negotiated solutions in these circumstances may be difficult. Nevertheless, negotiations held at WTO have dealt with: international shipping (transportation of passengers or freight between ports in different countries); auxiliary services (such as cargo handling, storage and warehousing, stevedoring, freight forwarding, customs clearance services etc.); and access and use of port facilities (such as pilotage, towing, provisioning, garbage collection, anchorage, etc.). Multimodal transport (door-to-door service, involving the use of one or more modes, i.e. road, rail, air, or inland water transport, in addition to shipping by sea) emerged later in the negotiations. The negotiations have however not dealt with cabotage shipping between ports in the same country (WTO, 2003). At the WTO, the issue of competition in liner shipping has been addressed both in the general context of the competition policy agenda (under the subject of international cartels that are discussed in the Working Group on the Interaction between Trade and Competition Policy (WGTCP)) 26 and through the maritime sector negotiations in the framework of the General Agreement on Trade in Services (GATS). The WTO has focused on including anti-competitive provisions under its various Uruguay Round 27 agreements, including GATS. 28 The GATS consists of three elements: the main text containing general obligations and disciplines; various Annexes dealing with rules for specific sectors (including maritime services sector); and a schedule of commitments, where each WTO Member lists the commitments on market access (Article XVI) 29 and national treatment (Article XVII) 30 including indications of where 25 The WTO, as of 30 November 2015, had 162 members, of which over two thirds are developing countries. 26 In July 2004, the General Council of the WTO decided that the interaction between trade and competition policy would be one of the areas that would no longer form part of the Work Programme set out in the Doha Ministerial Declaration and therefore, no work towards negotiation would take place during the Doha Round. See WTO (2004), paragraph 1(g). For further information about discussions on competition policy in international trade circles, see also Evenett and Clarke, Most of the WTO agreements are the result of the Uruguay Round negotiations, signed at the Marrakesh ministerial meeting in April New negotiations were launched at the Doha Ministerial Conference in November Available at: 29 Article XVI (Market Access) of GATS states: With respect to market access through the modes of supply identified in Article I, each Member shall accord services and service suppliers of any other Member treatment no less favourable than that provided for under the terms, limitations and conditions agreed and specified in its Schedule. 30 Article XVII (National Treatment) of GATS states: In the sectors inscribed in its Schedule, and subject to any conditions and qualifications set out therein, each Member shall accord to services and service suppliers of any other Member, in respect of all measures affecting the supply of services, treatment no less favourable than that it accords to its own like services and service suppliers.

15 countries are temporarily not applying the most-favoured-nation 31 principle of non-discrimination; as well as any additional commitments (Article XVIII) it undertakes in individual sectors which may relate for instance to the use of standards, qualifications or licenses. Articles XVI and XVII of GATS, commit Members to giving no less favourable treatment to foreign services and service suppliers than provided for in their Schedule. Thus commitments guarantee minimum levels of treatment, but do not prevent Members from being more open or less discriminatory in practice. Negotiations have resulted in individual countries commitments to open markets to various degrees in specific sectors. The commitments appear in schedules that list: the sectors being opened, the extent of market access being given in those sectors (e.g. whether there are any restrictions on foreign ownership), and any limitations on national treatment (whether some rights granted to local companies will not be granted to foreign companies). Changing or modifying commitments is difficult, as they can only be modified after negotiations with the affected countries. Therefore the commitments are virtually guaranteed conditions for foreign exporters and importers of services and investors in the sector to do business. Members are not obliged to make commitments on all the services sectors, and they may choose not to make a commitment on the level of foreign competition in a given sector. Thus the Member s only obligations are minimal, for example to be transparent in regulating the sector, and not to discriminate between foreign suppliers. 32 Thus, commitments under the GATS have implications for competition in the maritime services markets. There are currently 56 WTO Members with commitments in the maritime transport services sector. 33 Commitments undertaken in respect of international maritime transport, auxiliary services and access to and use of port infrastructure, unlike existing commitments in other sectors, are not necessarily definitive. The negotiation of commitments and lists of MFN exemptions in the maritime transport sector is subject to particular conditions as specified in the Decision of the Council for Trade in Services of 3 July 1996 (S/L/24). 34 This Decision provides that the maritime negotiations would resume with the commencement of comprehensive negotiations on services five years after the entry into force of the results of the Uruguay Round, on the basis of existing or improved offers. It also stipulates that a Member may improve, modify or withdraw all or part of its specific commitments in this sector, during a period of sixty days the end of which shall coincide with the conclusion of the negotiations referred to in paragraph 1 and that during the same period, Members shall finalize their positions relating to MFN Exemptions in this sector. In addition, the decision suspends, until the conclusion of the negotiations, the application of the MFN clause to the subsectors concerned, except in those subsectors where members have undertaken commitments MFN is a principle contained in Article 2(1) of GATS, which means treating one s trading partners equally on the principle of non-discrimination. Under GATS, if a country allows foreign competition in a sector, equal opportunities in that sector should be given to service providers from all other WTO members. (This applies even if the country has made no specific commitment to provide foreign companies access to its markets under the WTO.) MFN applies to all services, but some special temporary exemptions have been allowed. When GATS came into force, a number of countries already had preferential agreements in services that they had signed with trading partners, either bilaterally or in small groups. WTO members felt it was necessary to maintain these preferences temporarily. They gave themselves the right to continue giving more favourable treatment to particular countries in particular services activities by listing MFN exemptions alongside their first sets of commitments. In order to protect the general MFN principle, the exemptions could only be made once; nothing can be added to the lists. They are currently being reviewed as mandated, and will normally last no more than ten years. 32 For further information, see 33 See For further information and an analysis of the commitments regarding maritime transport, see WTO, 2010: Available at: 35 For more information, see WTO, 2010: 35.

16 10 The Negotiating Group on Maritime Transport Services decided to suspend the negotiations until the commencement of the next services round of negotiations in Since 2000, maritime sector negotiations have concentrated mainly on market access issues, and on additional commitments in relation to access/ use of port services, but not so much on anti-competitive practices of liner conferences. 36 In November 2005, WTO members collectively identified sectoral and modal objectives (WTO, 2005) for negotiations on maritime transport. Following the Hong Kong Ministerial Conference Declaration of December 2005, two separate plurilateral requests 37 were prepared and addressed to targeted members. These requests recommended the use of the so-called maritime model schedule. They mainly called for the elimination of cargo reservations, of restrictions on foreign equity participation and on the right to establish a commercial presence both for international freight transport and for maritime auxiliary services. They also called for additional commitments on access to and /or use of port services and multimodal transport services as well as for the elimination of most-favoured nation (MFN) exemptions. 38 Two rounds of plurilateral negotiations were conducted in early 2006, based on 21 collective requests that were formulated mostly along various sector lines. The results of the plurilateral negotiations, as well as additional bilateral meetings, were expected to be reflected in a second round of revised offers. While Annex C provided a timeline of 31 July 2006 for the submission of these offers, all negotiations under the Doha Development Agenda (DDA) were suspended just one week earlier, due mostly to a stalemate over agricultural and non-agricultural market access (NAMA). Negotiations resumed in February After several clusters meetings, there was a prevailing sentiment that the plurilaterals had served their purpose for the time being. However, WTO members continued their work with bilateral encounters. 39 As with other areas under the Doha Development Agenda, the services negotiations entered into an intensified phase at the beginning of In April 2011, the Chair of the Council for Trade in Services submitted a report (WTO, 2011) to the Trade Negotiations Committee on the achievements and remaining gaps in all four areas of the services negotiations, including market access; domestic regulation; GATS rules; and the implementation of LDC modalities. Another important development of general relevance, including for the maritime transport services sector, was the adoption in December 2011 by the WTO Ministerial Conference of a waiver which allows WTO members to deviate from their MFN obligation of non-discrimination in order to provide preferential treatment to services and service suppliers from least-developed countries (LDCs) Copies of proposals submitted at the negotiations on Maritime transport services and Services auxiliary to all modes of transport, are available at: In fact, one negotiating proposal on maritime transport, submitted by Australia in 2001 (S/CSS/W/111), had generally mentioned competition issues, and among others states Lack of appropriate competition legislation or its enforcement by governments prevents growth of efficiency and reduction of costs in the MTS subsector. It is proposed that competition policy issues be discussed during the next round of MTS negotiations. Understandings reached during such discussions can be incorporated into a special annex to the agreement. 37 Under plurilateral negotiations, a group of members with a common interest make a joint request to individual members to improve specific commitments in a particular sector or mode of supply. Subsequently, they meet collectively with the countries that have received this request. 38 For further information see the WTO website, htm. 39 For more information see the WTO website, For economic and regulatory developments in WTO member countries during the decade , see WTO (2010: and 31 43), which revises, updates, and supplements Secretariat background papers S/C/W/62 of 16 November 1998 and S/ CSS/W/106 of 4 October 2001, on the same subject. 40 Of the 162 WTO members, 34 are LDCs who could benefit from preferential treatment designed to promote their trade in those sectors and modes of supply that are of particular export interest to them.

17 The issue of fair competition in services in general has also been referred to in Article IX of GATS, according to which member countries shall enter into consultations and exchange non-confidential information with a view to eliminating practices that restrict competition, upon request of the affected member country. However, there has been no indication that this provision has been formally used by Members, including in relation to maritime transport services. 41 It is worth noting that while the GATS framework does not contain disciplines on competition, Members have the possibility, pursuant to Article XVIII to undertake additional commitments in their schedule of commitments on matters not captured by Articles XVI (Market Access) or XVII (National Treatment), such as, for example, competition matters. 42 Since additional commitments are negotiable and not part of the general framework, any commitments undertaken under this umbrella would be binding on those that so indicate in their schedules, to the benefit of all other Members IV. REGIONAL AND NATIONAL COMPETITION LAWS APPLICABLE TO LINER SHIPPING Despite major differences in the way competition laws of individual countries are applied to liner shipping, most of them have traditionally granted some form of exemption or anti-trust immunity to liner conferences. However, more recently, following ongoing discussion and analysis on whether exemptions from the effect of some competition rules granted to liner conferences are still justified, there has been a tendency in several jurisdictions towards the review of such exemptions, with the aim of narrowing the scope of regulatory protection, and subjecting liner conferences to open competition like all other industrial sectors. It is therefore important to provide a brief summary of the main features of the laws and policies applicable to liner shipping conferences, consortia, and other forms of cooperation agreements, in various legal systems around the world, particularly those of the European Union and the United States, as they are major trading partners for many countries, including developing countries. A. The European Union Article 101(1) of the Treaty on the Functioning of the European Union (TFEU) 44 prohibits agreements and concerted practices that restrict competition, such as price fixing and capacity control agreements. An agreement can only be excepted if it cumulatively fulfils the conditions contained in Article 101(3) TFEU, namely: 41 Worth noting in this context is Fink et al. (2001), a policy research working that recommends: first, putting an end to the exemption of collusive agreements in the maritime sector from national competition law, and secondly, the creation of a right of foreign consumers to challenge anti-competitive practices by shipping lines in the national courts of countries whose citizens own or control these shipping lines. The second obligation would be necessary to deal with a possible failure to enforce, and already has a precedent in the WTO rules on intellectual property and government procurement. One strategy to achieve these would be for a coalition of developing countries to put forward in that round of WTO negotiations, an offer of substantial liberalization conditional on the strengthening of Article IX. 42 See for instance WTO (1996), a Telecom Reference Paper, which was developed by a group of Members, as a set of regulatory obligations that a majority of WTO Members have inscribed in their schedule through additional commitments. In particular, it contains a provision providing that Appropriate measures shall be maintained for the purpose of preventing suppliers who, alone or together, are a major supplier from engaging in or continuing anti-competitive practices. 82 WTO members have committed to the regulatory principles spelled out in the Reference Paper, which largely reflects best practice in telecoms regulation. A similar thing could also be used for maritime transport, should Members so wish. 43 For further information see the section on maritime transport in document WTO, The TFEU came into force on 1 December 2009, following the ratification of the Treaty of Lisbon, which made amendments to the Treaty on European Union and the Treaty establishing the European Community (TEC). The TFEU is an amended and renamed version of the TEC which entered into force in Article 101(1) of TFEU used to be Article 81(1) of TEC.

18 12 [C]ontributes to improving the production or distribution of goods or to promoting technical or economic progress, while allowing consumers a fair share of the resulting benefit, and which does not: (a) impose on the undertakings concerned restrictions which are not indispensable to the attainment of these objectives; (b) afford such undertakings the possibility of eliminating competition in respect of a substantial part of the products in question. 1. Conferences In the European Union (EU), there is no exemption from the application of the EU competition rules for any industrial sector including maritime transport services. However, the EU Council adopted Regulation 954/79 45 facilitating the ratification or accession by EU Member States to the United Nations Convention on a Code of Conduct for Liner Conferences, which aimed at adopting a common position by the European Community Member States in relation to the this Convention. In fact, both the above instruments provided for a system of the so-called closed conferences. This system was accepted through the subsequent adoption by the EU Council of Regulation 4056/86, 46 which provided for a block exemption from the prohibition of liner conference agreements, decisions and practices which restrict competition. This Regulation nevertheless, in its Article 4 set out certain conditions for such exemption. For instance: [T]he agreement, decision or concerted practice shall not within the common market, cause detriment to certain ports, transport users or carriers by applying for the carriage of the same goods and in the area covered by the agreement, decision or concerted practice, rates and conditions of carriage which differ according to the country of origin or destination or port of loading or discharge, unless such rates or conditions can be economically justified. In addition, Individual Service Contracts (ISC) between conference members and shippers, were not to be restricted by a conference, and fixing inland rates jointly was not considered to be within the scope of permitted practices covered under this Regulation. In 2003, a review of Regulation 4056/86 was initiated by the European Commission, in order to check whether the justification for price fixing and supply control by liner conferences could still be considered as necessary under changing market circumstances. The examination found no causal link between price fixing and reliable liner shipping services, and it was estimated that a repeal of the exemption would improve service quality, and lead to a moderate drop in prices and considerable reductions in charges and surcharges (European Commission, 2005). Moreover it was argued that this decrease in transport prices would provide developing countries with the opportunity to increase imports and especially exports. The repeal was also likely to have a positive impact on developing countries since they typically export low value commodities with a relatively high transport cost share (European Commission, 2005: 28). Consequently, in September 2006, EU Council adopted Regulation 1419/ which repealed Regulation 4056/86. As a result, with effect from 18 October 2008, liner conference activities such as price fixing and capacity control, previously allowed by that Regulation, were no longer block exempted from the scope of Article 101(1). As regards the relationship with the United Nations Convention on a Code of Conduct for Liner Conferences, as from 18 October 2008, EU Member States are prevented from fulfilling their obligations 45 Official Journal of the European Communities, L 121: May. 46 Official Journal of the European Communities, L 378: December. This regulation is no longer in force. See further below. 47 Official Journal of the European Union, L 269: September.

19 under that Convention, and are no longer in a position to ratify, approve or accede to it. 48 However, it was also understood that EU Member States which were already Contracting Parties to the Convention, would not have a legal obligation to denounce it. 49 Along with the changes introduced by Regulation 1419/2006, a new competitive regime started for the maritime industry. It became clear that after 18 October 2008, Article 101 TFEU applies in its entirety to liner shipping. Thus anti-competitive practices of shipping conferences would become unlawful on trades to/from ports of the Community (see also European Commission, 2007). The European Commission adopted Guidelines (European Commission, 2008: 2 14) to provide guidance on the application of Article 101 TFEU to the maritime sector, and to facilitate the transition from a specific to a general competition regime for maritime transport after the repeal of the exemption granted to liner conferences. The Guidelines applied for a period of five years, that is, until 26 September In May 2012, after undertaking a public consultation (see European Commission, 2012), it was confirmed that the Guidelines had served their purpose and were no longer needed. Therefore they were not renewed. The reasons provided to justify the removal of the liner conferences block exemption granted by Regulation 1419/2006, were similar to those given in the 2002 OECD Report (OECD, 2002a), specifying that a thorough review of the industry carried out by the Commission has demonstrated that liner shipping is not unique as its cost structure does not differ substantially from that of other industries. There is therefore no evidence that the industry needs to be protected from competition. 50 It was also concluded that liner conferences no longer fulfil the four cumulative conditions for a legislative exemption adopted under Article 101(3) of the TFEU and so the block exemption granted in respect of such conferences should be abolished. In addition, it provides detailed explanations as to why none of the four conditions of Article 101(3) TFEU are satisfied. 51 The explanations are particularly useful to understand the likely arguments that may be used by the European Commission, national competition and regulatory authorities, and also national courts, when considering various arrangements that are likely to restrict competition among shipping lines, now that the block exemption for liner conferences has expired. Therefore they will be outlined in some detail below. Regarding the first condition for exemption, under Article 101(3), requiring that the restrictive agreement contributes to improving the production or distribution of goods or to promoting technical or economic progress (efficiency gains), paragraph 4 of Regulation 1419/2006 explains that: [L]iner conferences are no longer able to enforce the conference tariff although they still manage to set charges and surcharges which are a part of the price of transport. There is also no evidence that the conference system leads to more stable freight rates or more reliable shipping services than would be the case in a fully competitive market. Conference members increasingly offer their services via individual service agreements entered into with individual exporters. In addition, conferences do not manage the carrying capacity that is available as this is an individual decision taken by each carrier. Under current market conditions price stability and the reliability of services are brought about by individual service agreements. The alleged causal link between the restrictions (price fixing and supply regulation) and See Regulation 1490/2007 of the European Parliament and of the Council, Official Journal of the European Union L 332: 1, 18 December, which repealed Regulation 954/ See Opinion of the European Economic and Social Committee on the Liner Conferences-United Nations Convention, COM (2006) 869 final, Official Journal of the European Union C 256: 62, 27 October, paragraph 2.5. EU Member States having ratified or acceded to the Convention as of October 2007 included: Belgium, Bulgaria, Czech Republic, Denmark, Finland, France, Germany, Italy, Malta, Netherlands, Portugal, Romania, Slovakia, Spain, Sweden and the United Kingdom. Norway, an EEA member has also acceded to the Code (16 States Parties). Since then, six out of these, namely, Bulgaria, Denmark, Germany, Malta, the Netherlands and the United Kingdom, have denounced the Convention. 50 Regulation 1419/2006. Official Journal of the European Union, L 269: September, paragraph Ibid., paragraphs 4 8.

20 14 the claimed efficiencies (reliable services) therefore appears too tenuous to meet the first condition of Article [101(3)]. Concerning the second condition for exemption under Article 101(3), stating that consumers must be compensated for the negative effects resulting from the restriction of competition (fair share for consumers), paragraph 5 of Regulation 1419/2006 explains that: In the case of hard core restrictions, such as horizontal price fixing which occur when the conference tariff is set and charges and surcharges are jointly fixed, the negative effects are very serious. However no clearly positive effects have been identified. Transport users consider that conferences operate for the benefit of the least efficient members and call for their abolishment. Conferences no longer fulfill the second condition of Article [101(3)]. The third condition for exemption under Article 101(3) is that the conduct must not impose on the undertakings concerned restrictions which are not indispensable to the attainment of its objectives (indispensability). With respect to this, paragraph 6 of Regulation 1419/2006 explains that: Consortia are cooperative agreements between liner shipping lines that do not involve price fixing and are therefore less restrictive than conferences. Transport users consider them to provide adequate, reliable and efficient scheduled maritime services. In addition the use of service agreements has increased significantly in recent years. By definition, such individual service agreements do not restrict competition and provide benefits to exporters as they make it possible to tailor special services. Furthermore, because the price is established in advance and does not fluctuate for a predetermined period (usually up to one year), service contracts can contribute to price stability. It has therefore not been established that the restrictions of competition permitted under Regulation (EC) No 4056/86 (price fixing and capacity regulation) are indispensable for the provision of reliable shipping services to transport users as these can be achieved by less restrictive means. The third condition under Article [101(3)] is therefore not satisfied. Finally, the fourth condition under Article 101(3) requires that the conference should remain subject to competitive constraints (no elimination of competition). Regarding this, paragraph 7 of Regulation 1419/2006 notes that while conferences are present in nearly all major trade lanes and compete with carriers grouped in consortia and with independent lines, this is not sufficient for price competition to effectively take place. This is because: Whilst there may be price competition on the ocean freight rate due to the weakening of the conference system there is hardly any price competition with respect to the surcharges and ancillary charges. These are set by the conference and the same level of charges is often applied by non-conference carriers. In addition, carriers participate in conferences and consortia on the same trade, exchanging commercially sensitive information and cumulating the benefits of the conference (price fixing and capacity regulation) and of the consortia (operational cooperation for the provision of a joint service) block exemptions. Given the increasing number of links between carriers in the same trade, determining the extent to which conferences are subject to effective internal and external competition is a very complex exercise and one that can only be done on a case by case basis. 2. Consortia and other non-ratemaking agreements Despite the ban of liner conferences as from 18 October 2008, liner shipping consortia continue to enjoy a block exemption from the application of Article 101 TFEU. They are still allowed as a form of operational cooperation between liner shipping companies with a view to providing joint maritime cargo transport services, provided the consortia agreement does not involve rate fixing or anything other than temporary capacity cuts. The block exemption to liner shipping consortia was due to expire on 25 April but 52 See Article 2 of European Commission Regulation 611/2005, modifying Regulation 823/2000, and extending inter alia the block exemption for consortia until 25 April 2010.